By Lehlohonolo Lehana.
The National Prosecuting Authority (NPA) revealed that it will approach the Supreme Court of Appeal (SCA), after the Eastern Cape High Court in Gqeberha dismissed their application for clarification of factual findings in the judgement, that acquitted Nigerian televangelist Timothy Omotoso.
In May, the NPA brought an application before the same court, asking Judge Irma Schoeman to clarify her judgment.
Omotoso and his two co-accused were acquitted of all 32 charges, including rape and human trafficking in April, effectively walking free after an eight-year-long legal battle.
The ruling sparked national outrage, with many South Africans criticizing the justice system, for failing victims of Gender-Based Violence (GBV).
In Schoeman’s order, handed down on Tuesday, she agreed that her role in this matter was “functus officio” — that she had concluded her duties — and what the NPA was in essence looking for was an altered or supplemented judgment.
“Therefore, the State is not entitled to request clarification of facts prior to the lodging of an application for leave to appeal on a question of law,” Schoeman’s judgment read.
The accused were represented by Bay attorneys Peter Daubermann and Alwyn Griebenow. While Daubermann was in court last week to argue against the State’s application, Griebenow attended proceedings on Tuesday. Afterwards, he said the judgment was not surprising.
“The rules on this sort of procedure are quite clear, and the NPA did not follow protocol. This application was doomed to fail from the start.”
Asked where his client currently resides, Griebenow said Omotoso went to Nigeria after his deportation, and he assumed that was where he remained.
NPA spokesperson Mthunzi Mhaga said they had anticipated this outcome, but it would not deter them from proceeding with the appeal process.
“With respect, there was a misinterpretation of the case law we relied on as well as the intention of our request before the court.”
He said that in order for the NPA to properly draft its questions of law for an appeal it needed to identify factual findings that informed the judge’s decision on the acquittal. Mhaga said they did not agree with her order that they must first lodge the appeal before seeking clarification.
“The judge said she cannot correct, alter or supplement her judgment. That was never our request. We wanted her to clarify her factual findings so that we can proceed to finalise the drafting of our questions of law.”
He further said they would move forward with the appeal process before the end of this week, and also, if necessary, prepare a condonation application as their appeal would be filed outside the allotted timeframe.